Prior to a formal application for Judicial Review the Council was required to disclose a number of documents.  Amongst the documents was an e-mail dated the day before the Planning Committee Meeting of 8 November 2018.  The e-mail was from the Council’s Planning solicitor to the Case Officers and  advised that the planning application should be rejected if the Council have evidence of deception.  It also advised that if evidence subsequently came to light, that demonstrated that the Council had been deceived, it could take action.

Councils must act in the public interest, with integrity, objectively, accountability, openness and honestly.  On the expectation that the Council would adhere to these principles and the fact that it had now disclosed; that it recognised that a remedy existed, as an alternative to Judicial Review (which was a last resort),  the focus was on providing the Council with requisite evidence upon which to act.

Since the Planning Committee Meeting, over 40 pages of fresh evidence has been submitted for the Council to consider.   Instead of adhering to the principles that would allow all the evidence in support of a case of positive deception to be tested in the public gaze, the Council refuses to have regard to this evidence and act accordingly.  This is contrary to the public interest and infers it has something to hide.

Mr Vipond, a Director at Colchester Borough Council, in an e-mail dated 11 March 2019, now claims that the Planning Committee were specifically advised [by Case Officers] to ignore the possibility that the applicant may have positively deceived the Council. This means that the Planning Committee decision was predicated on the assumption that there had not been any deception, without any consideration as to the truth.  Furthermore Councillor Liddy, at the Committee Meeting advised that Members of the Committee were not there to determine whether there had or had not been any sort of deception (no Council Official intervened say Councillor Liddy was wrong).  Thus the issue of deception was never determined then and the Council refuse to look at it now.

It is now known that the Chair of the Planning Committee wrote to the Council, the day after the Committee Meeting, expressing concerns that “The Officers’ decision not to consider the breach of  the Law”  had effectively  imposed "handcuffs" on the Committee to prevent it establishing the real facts.   She also commented that it was the responsibility of the Planning Committee to show that Law in action but  “had the uneasy feeling that local residents had been short- changed in that no official recognition had been given to their genuine reasons for objecting“.  She had asked a number of questions of the Council but is not known if she got satisfactory answers to those. 

We would like our Councillors to keep asking questions and ensure that the Council is called to account and made to adhere to the “principles” of public life.  The Council, the Planning Committee and Councillors are brought into disrepute if they condone breach of the Law and/or are seen as complicit in a cover up or if they simply do nothing.  “Silence becomes cowardice when occasion demands speaking out the whole truth and acting accordingly.” (Mahatma Gandhi )  

Mr Vipond tries to suggest that the applicant did not benefit from undertaking unauthorised development. The applicant clearly did benefit in numerous ways, including the non-payment of appropriate rates.  Mr Vipond refuses to acknowledge the distinction between intentional unauthorised development (a material planning consideration) and intentional unauthorised development as a result of positive deception (which is subject to the public policy law principle, confirmed in the Supreme Court, that no one should benefit from their own wrong doing).

We want to know when the Council is going to start being sincere. We want to know when the Council is going to act on the evidence supplied.

As part of the pre-action protocol, prior to an application for Judicial Review, the Council were obliged to disclose relevant documents.

As the Council failed to disclose any documents in connection with any investigation relating to the evidence and allegations of misrepresentation/positive deception, the presumption must be the Council never investigated the evidence properly, in accordance with its own policies,  having regard to relevant case law.  If it had the findings would have been recorded and disclosed.

It appears that the Council's position that there was no evidence of wrongdoing was predicated purely on the misguided, subjective opinion of the Case Officer without appropriate legal input from the Council's Planning Solicitor.

It is highly significant that; the day before the planning committee meeting, the Council's Planning Solicitor inferred she had not examined the allegations of wrongdoing but had trusted the Case Officer had. She also explicitly acknowledged, that if evidence of reprehensible behaviour came to light then there are appropriate mechanisms for the Council to take action.

The fact of the matter is; that evidence already exists but the Council exercised "willful blindness" in assessing it objectively in accordance with the correct legal tests.

We are calling for an impartial review of the evidence and action to be taken as appropriate, to maintain public confidence in the planning system in the public interest.

We would grateful for further donations to help cover ongoing continuing legal advice. 

A long time prior to the planning decision, the Council was presented with strong evidence indicating positive deception, which undermined the planning process.

It is not apparent that the Council ever bothered to investigate this evidence properly. 

The Council’s Enforcement Policy , at Appendix A, states it takes breaches seriously and it contains a presumption of prosecution where evidence indicates any of the following: there are significant consequences for the environment, persistent breaches of regulatory requirements, failure to supply information without reasonable excuse or knowingly or recklessly supplying false or misleading information, and obstruction of Council staff.

"Deceit" and "fraudulent misrepresentation" are types of fraud. The public interest principle “fraud unravels all”  is derived from Lord Denning’s infamous statement in Lazarus Estates Ltd v Beasley . He stated that:  “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”

A response to a Freedom of Information request to the Council, received in the last year, states:

“No Non-Domestic Rating completion certificates have been issued in respect of the premises in the period since and including 2001”.

A check of the HM Revenue & Customs 2010 Rating List reveals that the property was described as “Workshop and Premises” and had a Rateable Value of £28,250 based on a Base Rate of £35 per sqm/unit. The total area of the declared buildings including storage containers and portable buildings is 842 sqm.

We know from Section 18 of the Planning Application that the property now has a floor area of some 2,258.5 sqm (some 2.7 times the declared area).

This suggests that the correct Rateable Value is in the order of £75,000 (i.e. £46,750 greater than £28,250).

Given that the Non-Domestic Rate Multiplier is generally well in excess of £0.40 it is estimated that there has been an underpayment of at least (RV £46,750 x £0.40) £18,700 a year.

Taken over the time the applicant has claimed that the majority of the buildings have been in existence, conservatively this is estimated to represent an under payment of at least £200,000.

Aren’t Colchester Borough Council worried about this?

No wonder there are insufficient funds to repair the roads.

Thank you to all of those who helped us reach our initial target of £6,000, so quickly, to enable us to mount our challenge - The Council have now been notified of that challenge and have been invited to consent to the quashing of the decision.

We still need to raise further funds to help underpin existing and potential further legal costs.  

Please keep spreading the word and encourage others to donate and spread the word too.  Many thanks.

There is a point of principle at stake here. The Council should not be rewarding and condoning those who intentionally breach planning controls, by using deception.

The Chair of the Planning Committee stated: "..I believe it has been shown that the applicant knew perfectly well what he was doing. And what concerns me is the message we will be sending to future applicants, because if this is approved, how can we not approve every other retrospective application that comes before us, it will make it extremely difficult."

This picture was taken this morning as children make their way to school.  

Our solicitors wrote to the Council on Friday 30 November 2018, inviting the Council to quash the planning permission dated 9 November 2018, so that it can be correctly determined in light of all the relevant facts, which were severely lacking, when the matter went to the Committee on 8 November 2018.  The Council have until 4pm on 14 December 2018 to respond.  If the response is unsatisfactory we have until 21 December 2018 to lodge a formal application with the High Court. 

The pre-action protocol letter was sent with the grounds for challenging the decision attached, together with a draft consent order.  These grounds were drafted by Counsel from Landmark Chambers.

Meeting our initial target of £6,000 has allowed us meet our initial costs.  We are looking to raise further funds to help underpin further legal funding requirements.

Colchester Borough Council has published the minutes of the Planning Committee Meeting of 8 November 2018 - these are due to be signed off/confirmed on 13 December 2018.  

We are really concerned as these minutes (Click here) do not reflect accurately what was said ( Click here to open audio recording of planning meeting). 

We are now posting a copy of a previous letter from the Council's Planning Investigation Officer dated 1999.  It seems that every time the owner breaches planning control the Council simply roll's over.

We have now had the recording of the Planning Committee Meeting of the 8 November 2018 transcribed - It is hoped to make this available to all soon.